WASHINGTON — Former president Donald Trump went to court on Monday to try to stop the special House committee investigating the Jan. 6 attack on the US Capitol from getting a trove of his administration’s records from the National Archives.
The lawsuit comes after President Joe Biden earlier this month refused to back Trump’s claim that at least some of the records that the committee wants are protected by executive privilege. Former presidents can take steps to try to shield their archives from Congress and the public, but, as Trump’s own lawsuit acknowledges, there are limits to that. Trump is arguing that the committee’s requests are unconstitutionally overbroad and violate separation of powers principles.
The case represents the former president’s latest, and arguably most formal, attack on the Jan. 6 investigation so far. He previously had instructed several former top advisers to defy subpoenas issued by the committee; Steve Bannon has refused to comply and the committee is set to vote Tuesday on whether to hold him in criminal contempt.
The types of records that Trump is objecting to include communications about the speech he gave at the “Stop the Steal” rally shortly before the bulk of the crowd of his supporters marched over to the Capitol, messages and schedules involving high-level officials across the executive branch, and information about personnel changes.
The House’s Jan. 6 committee, led by Rep. Bennie Thompson, sent records requests in August to the National Archives seeking a broad range of materials from the Trump administration related to the Capitol riots; the request covers the period from Dec. 1, 2020, to the day Trump left office, Jan. 20, 2021. On Oct. 8, White House counsel Dana Remus formally notified David Ferriero, the archivist of the United States, that Biden would not assert executive privilege in response to the committee’s requests. Remus wrote that “Congress has a compelling need in service of its legislative functions to understand the circumstances that led to these horrific events.”
The same day, Trump sent a letter to Ferriero saying that he wished to assert executive privilege over some of the categories of documents outlined in the committee’s request. Former presidents can try to designate their records as privileged, but that only gets enforced if the current officeholder backs it. Trump argued in the letter that the documents were entitled to executive privilege and other types of privileges, including the special protections given to presidential communications and messages between attorneys and their clients.
In response to Trump’s formal privilege claim, Remus wrote to Ferriero again to say that Biden would not uphold it. Biden “maintains his conclusion that an assertion of executive privilege is not in the best interests of the United States,” she wrote.
Unless a court intervenes, the archives are set to produce the documents to the committee by Nov. 12, according to the lawsuit. Trump’s case is filed in federal district court in Washington, DC.
Trump’s complaint cites a US Supreme Court decision in July 2020 that revived a fight between Democrats in Congress and Trump over a subpoena for his personal financial records; the majority held that lower courts had to give more weight to the separation of powers concerns at stake.
“The Committee’s request amounts to nothing less than a vexatious, illegal fishing expedition openly endorsed by Biden and designed to unconstitutionally investigate President Trump and his administration,” Trump’s lawyer, Jesse Binnall, wrote in the complaint.
Binnall is representing Trump against civil lawsuits filed by congressional Democrats and US Capitol Police officers accusing him of conspiring to incite the Jan. 6 riots. He previously was part of the legal team that defended former Trump national security adviser Michael Flynn against the criminal allegations that accused him of lying in the Russia investigation; his co-counsels in that case included Sidney Powell, one of the leading proponents of the election fraud conspiracy theories that fueled the attack on the Capitol.
Trump is asking for a court order blocking the National Archives from turning over the documents, or at a minimum to pause the transfer so that he can do a more thorough review; the lawsuit claims that the cache of records is unorganized and that he and his team haven’t had enough time to go through it all.
When Trump left office, he imposed a 12-year restriction on access to his administration’s official materials under the Presidential Records Act. As his complaint notes, there are exceptions that allow for access, including as part of a congressional investigation. Trump is arguing that the Jan. 6 committee’s request is too broad, violating separation of powers principles under the US Constitution and failing to support a “valid legislative intent.”
“If the PRA is read so broadly as to allow an incumbent President unfettered discretion to waive the previous President’s executive privilege, mere months following an administration change, then it would render the act unconstitutional,” Trump argued in the complaint.